The title of this essay is rather ambitious and the space available is hardly sufficient to examine two words of almost limitless expanse—“human rights”—whether standing alone or in tandem.* This requires that I begin with (and remained disciplined by) what a teacher of mine, Leo Strauss, called “low facts.” My low facts are these: We call ourselves humans because we have certain characteristics that define our nature. We are social and political animals, as Aristotle noted,1 and possess attributes not shared by other animals.2 The ancients noted this, of course, when they defined our principal behavioral and cognitive distinction from the rest of the natural world as the faculty of speech. The Greek word for this, logos, means much more than speech, as it connotes word and reason and, in the more common understanding, talking and writing, praising and criticizing, persuading and reading. While other animals communicate by making sounds of attraction or warning, leaving smells, and so on, none read newspapers, make speeches, publish their memoirs, or write poetry.

Assuming a prerogative I may not have, I would like to add an attribute to the list of what the Greeks said makes us distinguishably human. I submit that only humans have memory. It may be claimed a dog remembers that when his master comes home in the afternoon he will be taken for a walk, or that some animals have a species-specific memory that causes them to migrate each season at roughly the same time, but I am speaking of historical memory: of what happened, say, in France in the late eighteenth century, in the Congo in the nineteenth century, or in Germany in the twentieth. This type of memory is available only to those who use logos and have a reserved mental space for the storage of facts and judgments. Historical memory—the memory of what we have done to each other—is a decidedly human attribute. It could be said that one may scarcely be human without it. It could also be said that without memory there could be no possibility of imagination, and without imagination, no moral imagination. Two of the great documents of modern human rights point to memory in their preambles. The French Declaration of the Rights of Man and Citizen (1789) begins with this astounding statement:

The representatives of the French people . . . believing that the ignorance, neglect, or contempt of the rights of man are the sole cause of public calamities and of the corruption of governments, have determined to set forth in a solemn declaration the natural, unalienable, and sacred rights of man, in order that this declaration . . . shall remind them continually of their rights and duties.

We are being scolded, in essence, about our propensity for ignorance. We are reminded that we tend to forget. “Remember above all else,” the authors of the declaration warn us, that “our prior contempt of the rights of man is what has permitted tyrants to prevail.” The second sentence of the UN Universal Declaration of Human Rights (UDHR) does not admonish us about memory failure but establishes the connection between memory and intent:

Disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people.

As the Second World War was drawing to a close, those interested in forging a more humane world order knew it was necessary to remind the next generation, and those that followed, of the raw horrors that drove the drafters’ purpose.

There is another reason for turning to Aristotle, for it was he who, when considering the purposes of our lives and the causes of our actions, believed the reason we do things is to pursue an end, a telos, which for man is the good.3 Man’s telos, Aristotle claimed, is happiness (eudaimonia).4 We achieve happiness, he said, not simply by engaging in the individual and social activities that humans do but by doing them well. When we pursue excellence in an activity, and in the process learn to increase our skill and understanding, we enjoy it more fully. When we do what we do “best,” we flourish. Aristotle would not have used that word, but “flourish” is likely what he meant by eudaimonia. We perfect ourselves and thus become better humans by striving for happiness, our final good.

Goods were not rights in classical Athens. (“Goods” here do not mean the colloquial opposite of things bad—though they may be that—but things desirable for individuals and their polity, in the sense that the availability of sufficient food and medicine are goods, because when people are hungry or in pain they cannot pursue their ends as well as when nourished and healthy.) In fact, rights were not spoken of at all, in the way we understand them today. Rights had to wait almost two millennia to emerge on their own. Individuality, as we know it, was also not celebrated; virtue was, and virtue resided more in the person—in one’s soul—than in the political structure of the state. Indeed, the best state, as readers of Plato’s Republic know, is that structured most like the soul, or that which best mirrors its various ideal attributes.5 For the ancients, justice is a virtue to be cultivated by each person as well as the community.

As moderns, we understand the meaning of rights in the sense that they are enunciated in the U.S. Constitution and the Universal Declaration of Human Rights as limits on the power and lawful authority of the state. Rights check the power of the sovereign, which means not only state governments but even the power of the people, when the people are sovereign, because everyone from Homer to Madison knew that we sometimes act—and delegate our government to act—with temporary passion rather than measured wisdom and restraint. In short, we do not always know what we want or what is best for us even when we think we do. (Which Ulysses should control the crew of his ship—the one who determines the direction of sail each morning or the one who tells his men they must ignore his command tomorrow, the day he knows he will hear the seductive call of the Sirens?)6

Rights are desirable, of course, but are they “goods” in the Aristotelian sense? The answer is not frivolous because, if we shift to the modern understanding, the good and the right may occupy vastly different and at times incompatible realms. A right to read, for example, means the right to read (and hence be potentially influenced by) anything, whether it be good literature or bad rhetoric: whether The Brothers Karamazov or Mein Kampf. The right respects the reader’s choice, even if it is the wrong choice. Achieving the good, on the other hand, often entails more of a collective enterprise that may require hard work and necessitate individual sacrifice. Who, among the good people of the city, ought to bear that weight? If the reduction of crime is a good, then some might argue that the stop and frisk policies favored by a mayor or police chief are necessary even if they violate the rights of many.

THE BIRTH OF NATURAL LAW

Among the Romans, Cicero occupies a strategic position in this discussion, as he was a great admirer of the Greeks. (He was, in turn, the antiquarian that Grotius most admired and quoted, when the acclaimed “father” of international law wrote sixteen centuries later.) For Cicero, natural law is the source not of political rights as we would understand them today, but of political duties and moral obligations. Cicero’s natural law is not obscure. It is discoverable by human reason and, at the same time, provides guidelines for the use of our practical reason. It is universal, which is to say applicable to all those capable of reason, at all places and in all times. Like Aristotle, Cicero identifies human nature with being both self-aware and socially conscious.7

The dichotomy between the individual and the polity is slight: that which promotes harmony in the self, he says, promotes justice in the state.8 Similarly, that which causes anxiety in the individual causes discord in the government. The integration if not elision of individual and political metaphors is commonplace for Cicero. “Anger,” he writes, “is a kind of ‘revolt’ within the mind,”9 and “self-indulgence is ‘slavery’ to one’s own body.”10

Ultimately, “right reason is law,” by which Cicero means natural law, a force of universal magnitude.11 The same law that defines the elements of the human soul regulates the orbits of stars in the sky as well. “No one should be so stupid and arrogant,” he writes, “to believe that reason and intelligence are present in him and not in the heavens and the world.”12 While one should not see oneself as apart from the natural forces of the universe, classical natural law does not suggest one’s merging with the universe, in a sort of New Age fashion. Man constitutes a distinct species, with species-specific obligations. He shares his appetitive desires with animals, but controls them with reason, lest they impede his quest for the good—that is, the good that assists the perfectibility of human nature. To be obedient to natural law, in short, is to be fully human. This principle finds a surprisingly modern adumbration in Philippa Foot’s Natural Goodness, in which she sets forth the anti-positivist view that acting morally can be advanced by practical rationality. She states, rather startlingly, “There is no change in the meaning of ‘good’ between the word as it appears in ‘good roots’ (of a tree) and as it appears in ‘good disposition of the human will.’”13

This is perhaps a radical statement regarding the material depth of the domain of goodness, but it reminds us of the expansive domain of natural law thought. Natural law is the breeding ground of modern human rights, and merits that position for three reasons. First, by definition, its breadth and application are universal. To the degree that we are human, we are all subject to the laws of gravity, the need for nourishment, the demands of sleep, and so forth. Biology is not a bad place to begin. Torture causes as much pain to the nerve endings of the colonial subject as those of the imperialist merchant or religious proselytizer. Second, natural law recognizes man as a social being who requires the assistance of others to create the grounds for his physical well-being, intellectual education, and emotional satisfaction: for his ability to flourish. If we wish to live in a hospitable world, we require the performance of reciprocal acts of inspiration, trust, and decency. Third, and closely related, as natural law permits us to pursue our own good, it also requires us to pursue good for the sake of our polities—to create conditions under which the ends of others as well as our own may be realized. As no one could suggest that an individual’s pursuit of excellence would be enhanced when suffering from illness, or when held in detention, it is easy to see why the availability of medical care and the elimination of arbitrary arrest are included among the short list of human rights.14

This ontologically-based vision of natural law permits us to establish a point outside the confines of positive law from which positive law may be measured. With such a two-tiered legal edifice, an unjust positive law may be judged not only to be a poor law but, according to some, so unjust as to be no law with binding quality.15 This was the perspective from which Antigone, one of Western literature’s most sympathetic heroines, judged and ultimately resisted the infamous dictate of Creon, her king. And such was the perspective of the Nuremberg Tribunal, whose charter granted it authority to pass judgment on those who acted under the sovereign law of the Third Reich. The adoption of the Nuremberg Principles, it may be noted, by which the culpability of individuals for crimes against humanity was accepted into international law, was one of the earliest resolutions of the UN General Assembly, enacted more than a year before it adopted the Universal Declaration of Human Rights.16

THE MODERN TURN

In the seventeenth century, continental Europe experienced the end of the Thirty Years’ War, the peace of Westphalia, and the birth of the modern, nonecclesiastical nation-state. In England, Parliament and the king were at war, the former fighting not only with armed force but with petitions and remonstrations attesting to the rights of citizens. The king, whose sanctity and majesty heretofore was law, found himself tried and condemned for failing to honor the law. The civil wars inspired, if not frightened, Hobbes and Locke to reconsider political philosophy and relocate man—natural man, frail but ambitious—to the center of the political and moral universe. Like the origin of many ideological revolutions, the transformation from natural law to natural right occurred when few were looking.

One of the markers of this transition was the rise of the concept of individual consent. Consent is best seen as the complement of autonomy, a modern concept with which we may be on more familiar terms. To grant consent—or withhold it—is an expression of one’s autonomy. Consent without full autonomy is not proper consent, and autonomy without the ability to consent is not full autonomy. Hugo Grotius wrote The Law of War and Peace in 1625, a generation before Hobbes wrote Leviathan and two generations before Locke published his Second Treatise. For Grotius, the path to natural right passed through the doors of consent. Mutual consent, he wrote, was the “mother of civil law,”17 that is, the authority from which domestic civil obligations were derived. And he saw no reason why consent among nations could not be binding as well, to preserve peace and promote international justice.18

The primary site of consent, both historically and ontologically, is, of course, one’s body. Everything spirals out from there: slavery, torture, rape, detention, death—all of human rights’ “greatest hits,” so to speak. The closer an activity comes to one’s body, the more crucial consent becomes, since the body, according to Grotius, is not only occupied by the self but is owned by the self. The body is our first possession and our primary right secured by natural law.19 Consent to the use of our bodies and possessions gives us the power to alter social and moral relationships between ourselves and others. (The rise of consent put in train a series of political and legal developments that led, surely though indirectly, to the U.S. Supreme Court’s decision in Lawrence v. Texas [2003], which broke the authority of the state to exercise criminal control over intimate aspects of sexual expression when supported by mutual consent.20)

It should be no surprise, then, that Grotius found rape to be as illegal in the throes of war as in times of peace.21 We do not gain title to the bodies of civilians even if we defeat their armies in battle. What before had been considered a weapon of war, if not a spoil of victory, became for Grotius an international crime because it robbed women of the natural right to the dominion of their own bodies (not to mention rape’s gross violations of the victim’s consent, autonomy, and dignity). Nonetheless, it took 371 years for wartime rape to be classified as a crime against humanity, as decreed by the International Criminal Tribunal for Rwanda in 1998.22

If Grotius prefigured natural right, it was Hobbes who gave the idea life. He did so by employing the concept of natural law while simultaneously divorcing it from ideas about cosmic harmony (woven by the classicists) and theological support (required by the medieval schoolmen).23 Hobbes also lowered the political goalpost from the perfect to the possible. The architecture of Hobbesian natural law was grounded not by the ends of man but by his beginnings. And in these beginnings he found a human attribute even more potent than reason: namely, fear— fear of death or, equally accurate, the instinct for self-preservation.24 For Hobbes, reason would come later and human perfection perhaps never. Reason was not banished but dethroned. (It was necessary, of course, for people to realize that they must contract with one another to form a civil society, even if it required the transfer of most of their natural rights for safekeeping to the sovereign.)25 Hobbes initiated if not a coup at least an insurrection in the palace of political theory. According to Strauss, with Hobbes, “Death takes the place of the telos.”26 This may be overly dramatic, but it is not off the mark. To put survival first means that life is our first natural right, and if so, we have the natural right to preserve and sustain it.27 The rights to liberty and property follow closely behind, though for these to mature we would have to proceed to Locke, for which there is no space here.

Suffice to say that after Locke we have a natural right to our selves, our liberty, and what we have acquired by virtue of our labor and trade.28 We form political societies in order to protect ourselves and our natural rights, which may be neither expropriated by others nor derogated by our sovereigns. Accordingly, we even have the right to rebel if our rights have been improperly or unjustly usurped. The legal enforcement of consent crafted by Grotius, Hobbes, and Locke in the seventeenth century began what would come to be recognized later by legal historian Henry Maine as the transition “from status to contract,”29 a measured release from the socially frozen categories of birth and rank, which determined and circumscribed one’s degree of liberty and privilege, to the more socially fluid world shaped by agency and talent. Generally speaking, as the legitimacy of consent rose, limits imposed by rank and status declined. Consent not only granted enormous transformative power to individuals in their personal and commercial capacities but established the ground for the soon-to-be unarguable standard of political legitimacy. By the end of the eighteenth century obedience could no longer legally or ethically be demanded by political authority unless it was established by the consent of the governed.30

Kant’s later insistence on autonomy for rational beings cannot be overemphasized. His kingdom of ends—what would be considered today as the philosophical source of human dignity—is best understood, I think, as an aspect of the conflation of the individual with the universal, the ability and ultimately the obligation to conceive of morals as social rules that are created by “you” and are intended to apply to everyone, including you. Thus, in Kant we travel not from the duty to the right, as with Grotius or Locke, but we conceptualize the right as a benefit and a duty, that is, we understand that we have an obligation to treat others as ends because we consider ourselves ends.31 We legislate for others knowing we are others. Kantian ethics implies reciprocity. Humans are the source as well as the end of categorical imperatives.32

UNIVERSAL VS. LOCAL

In his State of the Union speech of January, 1941, when American isolationism still prevailed despite the thunder of war in Europe and Asia, Roosevelt offered the famous “Four Freedoms”:

We look forward to a world founded upon four essential human freedoms. The first is freedom of speech and expression everywhere in the world. The second is freedom of every person to worship God in his own way—everywhere in the world. The third is freedom from want . . . everywhere in the world. The fourth is freedom from fear . . . anywhere in the world.33

What was significant was not that Roosevelt emphasized two provisions of the First Amendment and two cornerstones of his New Deal, but that he saw no reason why these values could not become—should not become—foundations of a new world order.

Yet for reasons difficult to understand, resistance against universal rights remained strong, even in academic circles. Six years after Franklin Roosevelt uttered his aspirations, and a year before Eleanor Roosevelt would announce the passage of the Universal Declaration of Human Rights, the American Anthropological Association (AAA) stated its opposition to the UDHR draft. It asked, “How can the proposed Declaration be applicable to all human beings, and not be [merely] a statement of rights conceived only in terms of the values prevalent in countries of Western Europe and America?”34 The AAA was so committed to, if not blinded by, what it considered the proper protection of other cultures, and suspicious of the importation and imposition of values from our own, that it was unable to admit that the advancement of some human qualities, even the most basic ones advanced by the Roosevelts, might be more important than the advancement of others. The AAA has since modified its position (somewhat),35 yet I believe we still remain unnecessarily confounded by the perceived hegemony of Western-centered rights. We are too uncritical of the conceit of multiculturalism, especially when invoked by those engaged in various forms of violence against women.

Even as respected a spokesman for human rights as Michael Ignatieff maintains a certain distance from universalism. In an attempt to reconcile the right and the good, he states that if rights are an account of what is right, rather than good, rights can accommodate diverging concepts of what constitutes the good life. This permits him to conclude that it should be possible to maintain human rights protections in a variety of cultures, “each of which happens to disagree with others as to what a good human life should be.”36 But this involves a bit of wishful thinking, as it overlooks situations in which, say, the denial of rights to women in a certain culture is considered essential to what a good religion or culture should be. To deny women the opportunity to leave their homes without the company of a man, inherit property, or express or enjoy social or sexual agency without fear of social ostracism or worse cannot be tolerated simply as a variety of the good or an aspect of diversity. There are, of course, limits to the toleration of intolerance. These limits mark the initial delineation of rights.

RETURN TO THE HUMAN

I turn now to a second examination of what it means to be human. Consider why an academic division in every great university is called The Humanities. This broad range of disciplines leans in the direction of universals, encompassing the best of human expression and interpretation. The study of history itself is one of the humanities. We read in ancient poems and modern literature of friendship and betrayal, love and exile, pride and injustice. We empathize with the terrible cries of the wives and sisters of the fallen enemy at Troy. We ask ourselves Ivan Karamazov’s question, “If God did not exist, would all be permitted?” We read Auden’s dictum that “We must love one another or die.” We elevate our own prosaic humanity by participating in the eloquent telling of the humanity of others.

All moral qualities, at bottom, are matters of human measure. Consider questions of justice in imposing punishment after trial. What does a “severe” sentence mean, or a “lenient” one? What makes us able to say that one found guilty of rape should be punished more harshly than one convicted of shoplifting? Whether one deserves a severe or lenient sentence has no foundation unless we share similar measures of the relative impact of rape and petty theft themselves.

We can add to the necessarily human attributes noted above. I mentioned speech and memory. Add the importance of friendship. The experience of love. The desire for knowledge. The necessity of liberty. The beauty of music. The balm of humor. Tyrants know how potent these forces are, and they withhold them selectively with astonishing success to eliminate dissent, suppress autonomy, and coerce obedience.

Let me submit a penultimate word about love. I am not sure this is a uniquely human virtue. Penguins and pandas may experience love as well, but only humans write about it (logos again). Alain Badiou wrote in a short essay, “The love that can make a king suffer to an extent connects him with the serf. At that level, the serf is also a king.”37 This brings us back to the question of universality. But there is something about the topic that demands more attention than recognizing its ubiquity. Plato was the first philosopher, and surely not the last, to understand that the experience of love—of knowledge as well as of other humans—has universal implications.38 I believe love belongs more in the category of rights than goods, no matter that it is a good. Of course, no one has the right to an emotion, but we ought to have the right to express it if we desire. Love is dependent upon, and not less valuable than, other intangible rights of privacy, liberty, and autonomy. Recall that Winston’s love affair with Julia remained the last realm of human decency in Orwell’s 1984, and that the regime’s success in forcing him to betray his love was perhaps the novel’s most cruel scene.

CAN A RIGHT BE A GOOD?

Earlier I asked if a right can be a good. This may appear to be a curious question as it seems unlikely, especially in a discussion of the value of human rights, that a right could not be so. Rights are good, in the sense that they are desirable, but we risk a mistake of dangerous proportions if we say that the realms of rights and goods are not distinct. Political philosophy must deal in goods, of course, if it is to make sense or be of practical use. It is good to have commerce, let us say, as well as places of public recreation, museums, schools, inexpensive health care, and so on.

Any number of political objectives are worth pursuing because they promote individual and general welfare. But the pursuit of the good has an enormous identity problem: who is to say what is good, how do we know the good when we see it, and what are the appropriate methods by which we should establish the good? The good desired by Stalin—economic equality of all Soviet citizens—was used to justify political conformity so rigid that millions died in labor camps and fear ruled for decades. To consider a more contemporary dilemma, the good of eliminating terrorism has been given such peremptory importance by many political leaders in the United States that it has been invoked to justify imprisonment without the due process of law, and even torture.

Such are often the consequences of the reign of virtue or what Rawls called the unfortunate “comprehensiveness” of the good.39 What circumscribes its tendency to degenerate under the pressure of excessive zeal is the right, and only the right. Good cannot constrain itself. The right is a condition necessary to ensure the possibility of flourishing. If we take rights seriously we realize that they obligate us to establish a threshold that even the good must be required to recognize and obey. Human rights, then, provide limits to political and social excess. And they create necessary conditions under which the good can grow. No one can be oneself when hungry. No one can engage in commerce when deprived of liberty or autonomy. Scientists cannot work creatively in a laboratory if they are required to clear their research with a political overseer. No one can create or imagine or love when consumed by fear. We need human rights, in sum, to permit ourselves the possibility of being human.

NOTES

* This essay is derived from a speech given by the author in fall 2013 as part of the James Chace Memorial Series, sponsored by Foreign Affairs and the Bard Globalization and International Affairs Program.

“One cannot affirm the equality of humans or the universality of human rights unless one acknowledges that there is something about humans which distinguishes them from animals.” John Finnis, “Natural Law: The Classical Tradition,” in Jules L. Coleman, Kenneth Einar Himma, and Scott J. Shapiro, eds., Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford: Oxford University Press, 2002), p. 4. ↩

Ibid., bk. 2, sec. 16. In “Scipio’s Dream,” found at the end of Republic, Cicero writes, “Just as the god, who moves the universe . . . is eternal, so the soul which moves the frail body is eternal too.” Cicero, Republic, bk. 6, sec. 9–29. ↩

In a rhetorical slight he also substituted “law of nature” for “natural law,” thus allowing him to consider what is natural rather than what is required by reason as “properly” understood by classical and mediaeval political philosophy. ↩

That is, by the terms demanded by Locke a century earlier. “No government can have a right to obedience from a people who have not freely consented to it.” John Locke, Second Treatise, (1690), 2.192. ↩

Rawls uses the term “comprehensive” to mean religious and philosophical systems which cover “all recognized values and virtues within . . . one scheme of thought.” In John Rawls, “The Priority of Right and Ideas of the Good,” Philosophy and Public Affairs 17, no. 4 (1988), p. 253. ↩